Gonzales v. United States

364 U.S. 59, 80 S. Ct. 1554, 4 L. Ed. 2d 1569, 1960 U.S. LEXIS 764

• Court: Supreme Court of the United States
• Decided: June 27, 1960
• Docket: 416
• Status: Published

Opinions

Mr. Justice Clark

delivered the opinion of the Court.

This is a prosecution for refusal to be inducted into the armed services, in violation of the provisions of the Universal Military Training and Service Act, 62 Stat. 604, 622, 50 U. S. C. App. § 462 (a). Petitioner, who claims to be a conscientious objector, contends that he was denied due process, both in the proceedings before a hearing officer of the Department of Justice and at trial. He says that he was not permitted to rebut before the hearing officer statements attributed to him by the local board, and, further, that he was denied at trial the right to have the Department of Justice hearing officer’s report and the original report of the Federal Bureau of Investigation as to his claim — all in violation of the Fifth Amendment. The trial judge decided that the administrative procedures of the Act were fully complied with and refused to'require the production of such documents. Petitioner was found guilty and sentenced to 15 months’ imprisonment. The Court of Appeals affirmed. 269 F. 2d 613. We granted certiorari in view of the importance of the questions in the administration of the Act. 361 U. S. 899. We have concluded that petitioner’s claims are controlled by the rationale of Gonzales v. United States, 348 U. S. 407 (1955), and United States v. Nugent, 346 U. S. 1 (1953), and therefore affirm the judgment.

Petitioner registered with Local Board No. 9, Boulder, Colorado, on March 17, 1952. His answers to the classification questionnaire reflected that he was a minister of Jehovah’s Witnesses, employed at night by a sugar producer. He claimed IV-D classification as a minister of religion, devoting a minimum of 100 hours a month to preaching. On November 13, 1952, he was classified in Class I-A. On November 22, 1952, he wrote the Board, protesting this classification. He again stated that he was “a regular minister”; that he was “devoting an average of 100 hours a month to actual preaching publicly,” in addition to 50 to 75 hours in other ministerial duties, and that he opposed war in any form. Thereafter he was classified I-O. On April 1, 1953, after some six months of full-time “pioneering,” petitioner discontinued devoting 100 hours a month to preaching, but failed to so notify his local board. In a periodic review, the local board on July 30, 1953, reclassified him I-A and upheld this classification after a personal appearance by petitioner, because of his willingness to kill in defense of his church and home. Upon administrative approval of the reclassification, he was ordered to report for induction on June 11, 1956, but failed to do so. He was not prosecuted, however, and his case was subsequently reopened, in the light of Sicurella v. United States, 348 U. S. 385 (1955). He was again reclassified I-A by the local board. There followed a customary Department of Justice hearing, at which petitioner appeared. In his report to the Attorney General, the hearing officer suggested that the petitioner be exempt only from combatant training and service. On March 21, 1957, however, the Department recommended approval of the I-A classification. Its ground for this recommendation was that, while petitioner claimed before the local board on August 17, 1956 (as evidenced by its memorandum in his file of that date), that he was devoting 100 hours per month to actual preaching, the headquarters of the Jehovah’s Witnesses reported that he was no longer doing so and, on the contrary, had relinquished both his Pioneer and Bible Student Servant positions. It reported that he now devoted only some 6% hours per month to public preaching and from 20 to 25 hours per month to church activities. His claim was therefore “so highly exaggerated,” the Department concluded, that it “cast doubt upon his veracity and, consequently, upon his sincerity and good faith.” The appeal board furnished petitioner a copy of the recommendation. In his answer thereto, he advised the Board that he had made no such statement in 1956, and asserted that his only claim to “pioneering” was in 1952. The appeal board, however, unanimously concurred in the Department’s recommendation. Upon return of the file to the local board, petitioner was again ordered to report for induction and this prosecution followed his failure to do so.

Petitioner first contends that the Department denied him procedural due process by not giving him timely opportunity, before its final recommendation to the appeal board, to answer the statement of the local board as to his claim of devoting 100 hours to actual preaching. But the statement of the local board attributing this claim to petitioner was in his file. He admitted that he knew it was open to him at all times, and he could have rebutted it before the hearing officer. This he failed to do, asserting that he did not know it to be in his file. Apparently he never took the trouble to find out. Nevertheless he had ample opportunity to contest the statement before the appeal board. After the recommendation of the Department is forwarded to the appeal board, that is the appropriate place for a registrant to lodge his denial. This he did. We found in Gonzales v. United States, supra, that'this was the controlling reason why copies of the recommendation should be furnished a registrant. We said there that it was necessary “that a registrant be given an opportunity to rebut [the Department’s] recommendation when it comes to the Appeal Board, the agency with the ultimate responsibility for classification.” 348 U. S., at 412. We fail to see how such procedure resulted in any prejudice to petitioner’s contention, which was considered by the appeal board and denied by it. As was said in Gonzales, “it is the Appeal Board which renders the selective service determination considered ‘final’ in the courts, not to be overturned unless there is no basis in fact. Estep v. United States, 327 U. S. 114.” 348 U. S., at 412-413.

But there are other contentions which might be considered more difficult. At his trial, petitioner sought to secure through subpoena duces tecum the longhand notes of the Department’s hearing officer, Evensen, as well as his report thereon. Petitioner also claimed at trial the right to inspect the original Federal Bureau of Investigation reports to the Department of Justice. He alleged no specific procedural errors or evidence withheld; nor did he elaborate just what favorable evidence the Federal Bureau of Investigation reports might disclose.

Section 6 (j) of the Act, as we have held, does require the Department’s recommendation to be placed in a.registrant’s file. Gonzales v. United States, supra. But there is nothing in the Act requiring the hearing officer’s report to be likewise turned over to the registrant. While the regulations formerly required that the hearing officer’s report be placed in the registrant’s file, this requirement was eliminated in 1952. Moreover, the hearing officer’s report is but intradepartmental, is directed to the Attorney General and, of course, is not the recommendation of the Department. It is not essentially different from a memorandum of an attorney in the Department of Justice, of which the Attorney General receives many, and to which he may give his approval or rejection. It is but part of the whole process within the Department that goes into the making of the final recommendation to the appeal board.

It is also significant that neither this report nor the hearing officer’s notes were furnished to the appeal board. Hence the petitioner had full opportunity to traverse the only conclusions of the Department on file with the Board. Petitioner knew that the Department’s recommendation was based not on the hearing officer’s report but on the statement of the local board in his file. Having had every opportunity to rebut the finding of the local board before both the hearing officer and the appeal board, petitioner cannot now claim that he was denied due process because he did not succeed.¹

It appears to us that the same reasoning applies to the production of the hearing officer’s report and notes at the trial. In addition, petitioner has failed to show any particular need for the report and notes. While there are now allegations of the withholding of “favorable evidence developed at the hearing” and a denial of a “full and fair hearing,” no such claim was made by petitioner at any stage of the administrative process. Moreover, his testimony at trial never developed any such facts. In the light of these circumstances, as well as the fact that the issue at trial in this respect centered entirely on the Department’s recommendation, which petitioner repudiated but which both the appeal board and the courts below found supported by the record, we find no relevancy in the hearing officer’s report and notes.

Finally petitioner says that he was entitled to inspect the FBI report during the proceedings before the hearing officer as well as at the trial. He did receive a résumé of it — the same that was furnished the appeal board — and he made no claim of its inaccuracy. Even now no such claim is asserted. He bases his present contention on the general right to explore, indicating that he hopes to find some discrepancy in the résumé. But this is fully answered by United States v. Nugent, supra. There we held “that the statutory scheme for review, within the selective service system, . . . entitles [conscientious' objectors] to no guarantee that the FBI reports must be produced for their inspection.” 346 U. S., at 5-6. Even if we were not bound by Nugent, petitioner here would not be entitled to the report. The recommendation of the Department — as well as the decision of the appeal board — was based entirely on the local board file, not on an FBI report.

As to the production of the report at the trial, it is true that, while that issue was raised in Nugent,2 the Court gave it no separate treatment. However, it would be an act of folly not to require the production of such reports before the appeal boards, whose “actions are final” and to be overturned “only if there is no basis in fact for the classification,” Estep v. United States, 327 U. S. 114, 122 (1946), and subsequently to require their production at the trials in the District Courts. We note that the Courts of Appeals have uniformly rejected such claims. This is not to say that there might not be circumstances in a particular case where fairness in the proceeding would require production. No such circumstances, as foundation for a claim of actual unfairness, are before us. Contrariwise, the résumé fully set out petitioner’s statement before the local board as to his ministerial activity. Since this is not disputed, and since the Department’s recommendation was based on a disparity between petitioner’s representations before the local board — not on the FBI report — it follows that the reasoning of Nugent controls.

Petitioner raises other points, such as the fact that the prosecutor did not call the members and clerk of the local board to testify at his trial. We find no substance in any of them. Petitioner could have subpoenaed any witnesses he wished at the trial. It was he who was challenging the classification. The Government relied only on the record in the file, all of which was available to petitioner. He makes much of the identity of the language of the statement he is found to have made before the local board on August 17, 1956, as to his ministerial activity, and his earlier letter to the Board in 1952. But all of this was before the appeal board. Moreover, he could have called witnesses to bring out the circumstances surrounding the statement and the letter; the FBI files would have been to no avail. He contented himself, however, with offering only his own denial. The appeal board resolved this issue against him. It found that his claim as to ministerial activity was exaggerated and cast doubt on his sincerity. Both courts below have found "that the record is not without evidence to support these conclusions.” We will not set aside their findings here.

Affirmed.

1 Petitioner points out that the regulations, as we have said, at one time required copies of the hearing officer’s report to be placed in the registrant’s file. He attributes congressional approval thereto because the selective service laws were re-enacted and amended in 1951 and 1952. The same reasoning would apply, however, to the repeal of the regulation. As we noted, it was stricken by the Attorney General in 1952 and Congress has amended the Act three times subsequently — in 1955, 1957, and 1958. Still it has failed to indicate any objection to the repeal of the regulation.

2 Joint Brief for Respondents, p. 181, United States v. Nugent, 346 U. S. 1 (1953).